ON PETITION FOR REHEARING. On petition for rehearing appellants, in effect, assail our apparently anomalous position in holding that absolute title to oil and gas in situ does not vest in any person and, nevertheless, at the same time affirming as without error the judgment quieting title in fee simple thereto in appellees.
If our conclusions, in the face of this assertion, appear unreasoned it is, perhaps, because we eliminated as unnecessary in our opinion any discussion of the principles governing in cases where appellants' rights have been fairly determined.
In the case of Ward v. Tuttle (1913), 54 Ind. App. 674, 102 N.E. 405, which was an appeal from a judgment quieting title this court said:
"But, although the court may have erred in its finding in favor of appellee on his cross-complaint, such error could not avail appellant, for, since the court found against appellant on the complaint, and there was such evidence supporting the finding that this court cannot disturb it, appellant could not recover in any event, and he cannot complain because the court rendered judgment in favor of appellee, since the court's findings show that he was not entitled to the land. Since there is no error which can affect appellant, this court will not reverse the judgment of the lower court and will leave the parties where it found them."
In that case the court below, by its judgment, quieted title in fee simple in the appellee who was shown to have had only a life estate therein. *Page 244
And again, in the case of Rosenberg v. American Trust, etc.,Bank (1927), 86 Ind. App. 552, 156 N.E. 411, this court said:
"We are wholly unable to understand that it makes any difference to appellants where the title is when it is determined that they have no lien on the real estate. When the merits of the case so far as they affect appellants' rights are fairly determined appellants may not further complain." Citing § 725 Burns' 1926 (§ 2-3231, Burns' 1933) providing that no judgment shall be reversed where it shall appear that the merits of the cause have been fairly tried and determined in the court below.
In the instant case it is shown by the findings of the court below that appellants have no interest in the oil and gas. If the judgment following erred on the side of liberality toward 6. appellee that error is not available to appellants in this appeal.
The petition for rehearing is denied.
NOTE. — Reported in 57 N.E.2d 598.